921 N.W.2d 151
Neb. Ct. App.2018Background
- Defendant Kirk A. Botts was charged with possession of a knife by a felon after officers discovered a machete under the driver’s seat of a vehicle he had been driving; parties stipulated Botts had a prior felony conviction.
- Officers encountered Botts with his vehicle blocking a street late at night; another officer informed them he had stopped Botts earlier and smelled alcohol.
- Botts became agitated, made statements like “shoot me,” was handcuffed, and while in an officer’s cruiser admitted the machete was his and said he used it for work.
- Police towed the vehicle and, pursuant to department policy, conducted an inventory search and recovered the machete.
- Botts was convicted by a jury, sentenced to 1 year imprisonment plus 1 year postrelease supervision, and appealed raising errors as to a jury instruction, admission of certain testimony, and sufficiency of the evidence.
- This appeal followed prior appellate proceedings where the Nebraska Supreme Court remanded to consider additional assignments of error after reversing an earlier appellate disposition.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Botts) | Held |
|---|---|---|---|
| Jury instruction based on Neb. Rev. Stat. § 28-1212 | Instruction properly reflects statutory prima facie presumption and may be given if it does not shift burden | Instruction unconstitutionally shifts burden, violates presumption of innocence and due process | Any error in giving the instruction was harmless under the facts (conviction affirmed) |
| Admission of testimony about prior traffic stop and Botts’ demeanor | Testimony was relevant to why officers approached, showed Botts was driver and gave context; probative value outweighed prejudice | Testimony irrelevant and unfairly prejudicial, placing Botts in a negative light | Overruling objections was not an abuse of discretion; testimony was relevant and not unduly prejudicial |
| Sufficiency of the evidence to prove possession by a felon | Evidence (stipulated prior felony, machete under driver’s seat, Botts’ admissions) proved elements beyond a reasonable doubt | Evidence insufficient; presence in vehicle alone not enough | Evidence was sufficient to sustain conviction |
| Appropriate remedy for instructional error (if any) | Harmless error given direct admissions and surrounding facts | Instructional error warrants reversal | Harmless error; affirm conviction |
Key Cases Cited
- State v. Stalder, 231 Neb. 896, 438 N.W.2d 498 (Neb. 1989) (treated statutory presumption and required jury instruction language under then § 27-303(3))
- State v. Jasper, 237 Neb. 754, 467 N.W.2d 855 (Neb. 1991) (held presumption-based instruction impermissibly shifted burden and violated due process)
- State v. Blackson, 1 Neb. App. 94, 487 N.W.2d 580 (Neb. Ct. App. 1992) (applied Jasper and found § 28-1212 instruction deprived defendant of due process)
- State v. Botts, 299 Neb. 806, 910 N.W.2d 779 (Neb. 2018) (Supreme Court granted further review and remanded to consider additional assignments of error)
- State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (Neb. 2016) (standard for reviewing jury instructions and prejudice requirement)